1. ""Probably not guilty""
Posted by Harry on Mar-12th-04 at 6:24 PM

The following extract appeared in a newspaper article prior to the preliminary hearing:

".... The preliminary trial is not now regarded as of special importance in fixing the responsibility for the crime, except that it gives the defense an opportunity to measure the strength of the Government’s case. It is an even chance that the verdict will be “probably guilty.” If the verdict should be “probably not guilty,” the Government could still insist on placing the case before the Grand Jury and demand an indictment over a discharge ordered by a lower court.  ..."

Since there could be no punishment or sentence resulting from a "probably guilty" verdict at a preliminary hearing the double jeopardy clause does not come into play.

But in effect the prosecution can get two bites at the apple. Makes you wonder why bother with the hearing and just go straight to the Grand Jury.

In his book 'Goodbye Lizzie Borden' Robert Sullivan explains the purpose of a preliminary hearing (now called a probable-cause hearing in Massachusetts). Some of the important points Sullivan makes about Massachusetts law are these.

1. The most serious crimes (such as murder) must be heard by the Superior Court. District Courts hear only misdemeanors and less serious felonies.

2. A district court judge [like Josiah Blaisdell in Fall River] can bind a defendant over for the next grand jury sitting if he/she hears enough evidence during a preliminary hearing to show there is probable cause to believe a defendant guilty.

3. Probable-cause proceedings are used to weed out frivolous and contrived criminal charges.

4. Probable-cause hearings allow a defendant the opportunity for early discovery, that is the defendant can find out what kind of evidence the prosecution has and may use against that defendant in a later trial.

5. In contrast to a grand jury proceeding a defendant in a preliminary hearing has a right to be present at the hearing, a right to be represented by counsel, and his or her counsel has the right to cross-examine the prosecution's witnesses.

6. There is no legal requirement in Massachusetts that there be a probable-cause hearing prior to an indictment.

I heard that even tho Michael Jackson had been arrested and charged, they were electing to go straight to the Grandy Jury in order to keep some control of the proceedings and keep the press out.
I think they are bypassing the probable cause hearing.

I wonder what the defense would feel about that.  I'd think they would prefer a public hearing..(any defense)